Essays on law, leadership, technology, and "things" – and arts, culture, intellectual property, and commons – and entrepreneurship and innovation – and higher education – and Pittsburgh and urbanism. One law professor's views of the world.

About the author

I have been posting at madisonian.net since 2004. From 2003 to 2011, I also wrote at Pittsblog, about regional economic development and the re-emergence of one particularly interesting city and region: Pittsburgh, Pennsylvania. Pittsburgh-themed posts will appear here from time to time.

I publish a related calendar of academic events in intellectual property and information technology law and policy at IP and IT Conferences.

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The apparent absence of artifice — one might say, the calculated absence of artifice — so dominates California’s cultural and natural landscape that when I return from a trip out West, as I just did, I have to spend a few days cognitively re-situating myself in the manufactured East.

What that means is that I’m a native Californian who has lived in Pittsburgh for a long time. Each occasional re-immersion in the land of my youth means re-assessing that place in light of my current experience. As part of “Code,” Lessig once distinguished “West Coast Code” (computer code — open, networked, bottom-up) from “East Coast Code” (legal code — closed, proprietary, top-down), noting that each “regulated” behavior, but in different ways. But I think that he (as a native Pennsylvanian) mis-read the Californian metaphor. California’s contribution to contemporary jurisprudence — to thinking about code, and openness, and to IP and tech and culture — cuts quite differently.

The leftmost edge of the US is about utopianism — just as so much of the US in general is dominated by utopianism — but utopianism of a very specific flavor, and utopianism unlike the utopianism of the contemporary East Coast.

East Coast utopianism is often about Being. In Pittsburgh, for example, Pittsburgh exceptionalism about who “we” (Pittsburghers) “are” (we’re amazing!) dominates all sorts of public conversations. And Pittsburgh and Pittsburghers are hardly alone among Eastern communities in their self-regard for their present (if sometimes unrecognized or unrewarded) greatness, but they are uncommon (and therefore an uncommonly good example) for the linkages among achievement, greatness, and place. Pittsburgh today is an interesting city, even occasionally cool or hip, precisely because it is so explicit and obvious about its interest in recapturing and then repurposing its 20th century glory. There is 21st century glory ahead, but — as in Boston, or New York, or even Cleveland — 21st century glory is about affirming and extending existing glory. We already occupy the promised land.

West Coast utopianism is about Becoming. Existing communities don’t make the point as clearly as new communities do (whether existing communities includes only big ones, like San Francisco or Los Angeles, or small ones, like San Luis Obispo); novelty, in fact, is the entire point. Few in California have achieved their utopian vision; utopia is by definition always a work in progress. We are designing utopias — entirely new places. We are headed *to* the promised land, or we are *building* the promised land. The New York Times just carried a couple of short pieces that, juxtaposed, make the point all too clearly. “Utopia Rules at Sea Ranch, a Community Born of ’60s Idealism,” about the Sea Ranch planned second-home community on the bluffs between Bodega Bay and Mendocino (my family was one of many that vacationed at Sea Ranch in the 1970s) appeared at the same time as “The Happiness Project,” about Disneyland. Behavioral rules and regulations at Disneyland are legendary, whether we’re thinking of customer behavior or staff behavior. That’s the utopian design. The idyll of Sea Ranch was/is no less scripted, architecturally and behaviorally.

West Coast “code” is, in other words, just as law-specific and regulatory in a traditional sense as East Coast “code” is. Apple and Google — West Coast code in Lessig’s sense — are Disney-ish, in a digital context. But they are forward-looking rather than backward-looking.

Walt Disney himself was, in a way, the Steve Jobs of an earlier, pre-digital era, a showboating aesthetic imperialist who had an instinct for producing extraordinarily inspiring and comforting cultural objects. (I visited the Walt Disney Family Museum in San Francisco, which is a great place and which reminded me constantly of the Disney/Jobs resemblance. I am farfrom the first person to noticeit.) Mickey Mouse was the totalizing cultural icon, the iPhone, of 80 years ago, a cheap entree to the E-ticket ride of the future. Up at Sea Ranch, the visioneer behind that project, Lawrence Halprin, played the same role. Sea Ranch represents the California natural sublime; Disneyland represents the California cultural sublime. Of course, they are the products of quite distinct utopian impulses; Fred Turner’s history “From Counterculture to Cybereculture” explains.

Does this all have anything to do with IP law? In a general, conceptual sense, I think so. IP policy in the US is understood to be guided by “progress,” a word and metaphor that comes from the US Constitution and that pays off in the copyright concept of “originality” and the patent concepts of “novelty” and “nonobviousness.” IP law speaks directly to collective interests in new stuff; new stuff makes us collectively better, in some way. But to what end? My Californian bias suggests that “progress” should be informed by a “Becoming” utopianism rather than a “Being” utopianism. (Which is hardly an uncomplicated resolution, to be sure.) Much IP debate and discussion today, it seems to me, is “Being” rather than “Becoming.”

Contrasting “Pittsburgh tech is booming!” stories with “the rest of Pittsburgh is struggling” is always interesting … because those sorts of comparisons are done so rarely. But the comparison tells us and others something important about the region. Continue reading Building a #Pittsburgh Narrative

20,000 new residents for the City of Pittsburgh by 2025? Mayor Bill Peduto aims low, but that’s not the real problem in the newly-released “Welcoming Pittsburgh” plan. [Welcoming Pittsburgh plan here.] Still, I’ll start with that. According to Aesop, the mountain labored and brought forth a mouse. But like many recovering industrial cities, Pittsburgh may have to get used to hoping to meet low expectations. Over and over again.

Back when I was writing Pittsblog, immigration and what I called “population churn” were favorite and frequent topics on that blog, linking population turnover (not necessarily population growth) to economic development and diversification. Samples:

In other words: Everything old is new again. The Mayor’s Office and the Downtown Powers-That-Be have re-discovered something that lots of people who are better informed than I am have known for a long time: Whatever the future of Pittsburgh may bring, the people who live here right now will need a lot of help in bringing it about.

Like them, I’m particularly concerned about the critical tone that the Report adopts regarding fair use, not only with respect to orphan works in particular but with respect to copyright generally. The myth persists that fair use is a bad and unhelpful doctrine, not only for profit-maximizing copyright owners (it is understandable that they would tend to spend out against fair use, though not all do) but also for society as a whole. Why does the U.S. Copyright Office take what appears to be a dim view of a doctrine that has such a sound historical pedigree and that plays such a fundamental role in the copyright system?

“[S]ocial and cultural patterns underlying case-by-case adjudication of fairuse problems may have achieved something that formal reliance on the fairuse statute has been unable to produce: a framework for analyzing fairuse problems that is both stable and relatively predictable in the context of legal doctrine, and that corresponds in a sensible way to the behavior of individuals and institutions governed by copyright law.”

@NEXTPittsburgh recently published a nice roundup and review of the independent bookstores in the region that are standing proud for print as well as text. Pittsburgh isn’t as publicly bookish as say, Boston, but it’s nice to know that there are a few outlets left for those of us who like to browse in person as well as online.